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Moore v. PESP/TSI Group11/15/2002
251 N.Y. 90, 167 N.E. 181 (1929), American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288, and Haco Drilling Co. v. Buchette, 1961 OK 145, 364 P.2d 674.
The Marks test, as quoted and applied by the Oklahoma Supreme Court in Cochran v. Maassen Tool & Supply Co., 1951 OK 10, , 226 P.2d 953, 956, provides:
We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been cancelled. . . .The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of this own. . . . If, however, the work had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.
As established previously, the travel between Oklahoma City and the Texas Project is not considered a business errand. The evidence supports the trial court's conclusion that the trip was a personal errand for Claimant and Weese, motivated by their desire to spend less of the "per diem" money. The record also supports the conclusion that the trip would have been performed whether there was any need to obtain additional welding rods, pick up the "per diem" checks, or secure the welding rods. Under the test cited by Claimant, the trial court correctly treated the trip as a personal errand with the attendant personal risk.
Haco Drilling Co. offers no more support for Claimant. It involved an employer's liability for an employee's negligent acts, wherein incidental benefit to an employer may be considered to impose liability on the employer under respondeat superior, and has no application in a workers' compensation context. Burns is even worse for the Claimant as the record is devoid of any evidence that Claimant and Weese were subjected to any risk beyond that faced by the ordinary traveling public.
Claimant's remaining argument is that the trial court should have consolidated the trial of his case with that of Weese. Other than the risk of inconsistent decisions in two cases that is inherent in our system which allows each party their day in court, he identifies no prejudice from the decision not to try the cases together. Moreover, he did not raise this error in his en banc appeal and has waived any such error. Red Rock Mental Health v. Roberts, 1997 OK 133, 940 P.2d 486.
Based upon this record, we cannot conclude that the trial court's order is contrary to law or unsupported by any competent evidence. The order is sustained.
SUSTAINED
HANSEN, P.J., dissents, and MITCHELL, J., concurs.
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